Friday, December 7, 2012

Last Call

The Court agreed to hear the Windsor v. United States case, which was
brought by a lesbian widow. The Second Circuit Court of Appeals invalidated
DOMA in a 2-1 decision finding that the federal government did not have
a legitimate interest in treating same sex couples differently.

It’s another legacy-defining case for the Roberts Court and
extraordinarily tricky one. The rapidly growing public support for same
sex marriage in many parts of the country leaves little doubt that it
will eventually be legalized in a substantial number of states. For gay
marriage supporters, however, DOMA, signed by Bill Clinton, remains a
political roadblock at least so long as Republicans control the House of
Representatives. That leaves the federal courts as the best avenue for
eliminating the law. The question is whether the justices will lead the
way or leave the roadblock in place.

“I don’t think justices get in this position very often because
everybody knows what the judgement of history is going to be,” Lucas
Powe, a Supreme Court historian at the University of Texas-Austin School
of Law, told TPM before the court’s announcement. “I don’t think think
anybody doubts that gay marriage is coming — it’s only the issue of
time. This is one of those times where no matter what you think you know
you’re going to be wrong if you oppose it.”

The Supreme Court announced
on Friday that it will take up California’s Proposition 8, the 2008
ballot measure that amends the state’s Constitution to ban same sex
marriage.

The Court will hear oral arguments in next spring and render a
decision by the end of June. At issue is whether the U.S. Constitution
prohibits a state from codifying a ban on recognizing same sex
marriages.

The DOMA case asks the
justices to strike down the federal law that dictates which marriages
are valid. Even better for supporters of same-sex marriage: Of the
several DOMA cases the court could have taken, it decided on Windsor v. United States,
in which plaintiff Edith Windsor was unable to claim an estate-tax
deduction after her female partner died. Between striking down part of a
heavy-handed federal statute and helping someone get a tax cut, it's
the kind of same-sex marriage case even a conservative justice could
love. Most importantly, from the point of view of getting the requisite
five votes, striking down DOMA would not prevent states from banning
same-sex marriage.

The Prop. 8
case argues something much broader, however: It claims there is a
fundamental right to same-sex marriage in the Constitution, and that any
attempt to ban same-sex marriage violates the 14th Amendment. The Ninth Circuit's ruling was written so narrowly
that if the Supreme Court had decided not to take the case, then the
Ninth Circuit's decision would have affirmed the rights of same-sex
couples in California alone. But if SCOTUS were to affirm the
constitutionality of California's ban on same-sex marriage, the ruling
could well apply to any such law nationwide.

Not only that, the American Prospect's Gabriel Arana wrote in 2009
that "defeat could legitimize such discrimination against LGBT
Americans, making it far more difficult to sue for parental or housing
rights."

So the question is "Can discrimination against LGBT Americans be codified into law and still pass Constitutional muster?" The courts have let stand such discrimination for ex-convicts for instance at the state level (denial of right to vote, sex offender registration), but not the national one. (Civil Rights Act, Voting Rights Act).

At least, so far.

It's in the hands of SCOTUS now, and this June should be rather exciting. It's possible same-sex marriage could become a national right. On the other hand, it could mean the annulment and end of current same-sex marriages across the country for generations.

If you had to ask me to hazard a guess, I'd say DOMA is struck down, but Prop 8 stays, meaning that states will have the right to ban same-sex marriage if they want to, but that the feds must agree to abide by treating those same-sex marriages in states that allow it as full marriage with all federal benefits.

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With Republicans controlling the House and Senate and President Obama coming to the end of his second term in the White House, there's still plenty of Stupid to fight on all sides with a crumbling global economy imperiling the world, two seemingly endless wars, a federal government nobody trusts or believes in, global climate change putting us on the brink of destruction and a Village media that barely does its job on even the best day.

Needless to say there's a lot of Stupid out there still coming from both political parties, when we need solutions.

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